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JIPLP 10th Anniversary Conference: Part III

[Blogger's note: no amount of live blogging can do justice to this colourful presentation which, it is hoped, Eleonora can be persuaded to publish, ideally in JIPLP ...] "A decade of random copyright (reform) in Europe" was the chosen topic of Eleonora Rosati (University of Southampton; e-LAWnora -- and one of the three incoming Editors of JIPLP).

After saying some very kind things about this blogger, Eleonora's presentation addressed the past decade of copyright rulings and reforms in the European Union, with all their fits and starts. Until 2009 there was nothing much going on, but then we had Infopaq and an outbreak of judicial activism. From then till 2013 there was a stream of acts, declarations, reports, consultations and decisions that increasingly focused on copyright harmonisation, echoing developments in patents and trade marks.

Where is copyright in 2015? There is a general feeling that copyright is not fit for purpose, Eleonora observed. Her talk then embraced topics as varied as orphan works, originality of authorship, geo-blocking, liability of service providers, content portability, exceptions and defences to infringement -- some of which are not exclusively (or even at all) copyright issues, and others of which may have relevance to competition law. Apparently a draft directive on content portability is expected from the Commission within the next few months, possibility on account of the Italian preoccupation with watching Serie A football.

Turning again to the Court of Justice of the European Union, Eleonora pointed out that it had addressed matters ranging from the commercial to the metaphysics, musing on questions such as "what is parody?" It would be wrong to think that the Court of Justice has been just a minor character in this saga, she added, noting that everything now seemed to revolve around it.

Eleonora then turned to freedom of panorama and the astonishing rumours that have abounded about making it unlawful to include publicly displayed copyright content in the background of one's photographs and that the EU was planning to send people to jail for linking their websites to allegedly infringing material.

In "Patents in perspective" Stefano Barazza (University of South Wales) substituted his talk "towards endogenous patent policies?" and indicated that he was going to touch upon something that troubled him. He started with the Tesla pledge to remove the "patent wall" which threatened to stop the development of electric vehicle technology.

Why did Tesla's Elon Musk do this? He recognised the size of the market, the absence of traditional competitors, the difficulty of satisfying the market and the need to create a growing, developing technology that should be able to motivate creative minds to enter the field. But was this all? Stefano remained unpersuaded by this. Why was this portfolio thrown open with no conditions and qualifications? Might there be some underlying reason?

Said Stefano, it seems that there is a shift from exogenous patent exploitation policies, imposed on businesses from outside as it were, by reference to legal standards and industry norms, towards endogenous ones, generated by patent owners themselves. He reviewed the histories of patents as an instrument of social and economic policy in Switzerland and Netherlands, comparing them with Germany, Italy, France and Spain and contrasted them with the Indian concept of Jugaad (a "colloquial Hindi and Punjabi word that can mean an innovative fix or a simple work-around, used for solutions that bend rules, or a resource that can be used as such, or a person who can solve a complicated issue").

Exogenous patent policies tend to establish consistency across diverse fields. They tend not to provide the same degree of reward and stimulation across all fields, producing "closed innovation".

How does closed innovation work? It's good for rent-seeking and for defence strategies. There's usually a lack of discussion and a lack of sharing. It can also be inefficient in that it often results in innovative products not entering the market or generating profit, and with severe lack of growth.

Turning now to Tesla, Stefano discussed "patent pledges", promises not to sue or to limit enforcement, are becoming increasingly important. Other companies such as Microsoft, IBM and Nokia have made similar sorts of pledges. He also reviewed theECO-Commons -- not so much a patent pool as a collective waiver.

The opening of patent portfolios is not new. Bessemer and some other patent owners have been doing it since the 1960s. What they have in common is their facility for sharing inflowing knowledge and information, which is then expanded and spread to others by the same process. Open innovation is not about outsourcing, he added: it's about collaboration. And while patent rights are exclusionary, they can be made to be diffusionary instead, leading to other ways of monetising patents.

It should not be suggested that exogenous patent policies should replace endogenous ones, but rather that they should be seen as alternative business structures. Stefano then discussed the Monopoly paradox: in Monopoly, assets are fixed, players are unwilling to trade and risks. In chess, risk-taking and the flexible nature of the players' assets. A chess analogy better explains the Tesla strategy.

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About this weblog

The principal contents of this weblog are drawn from the Current Intelligence features which are published monthly in JIPLP.

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JIPLP is a peer-reviewed journal dedicated to intellectual property law and practice. Published monthly, coverage includes the full range of substantive IP topics, practice-related matters such as litigation, enforcement, drafting and transactions, plus relevant aspects of related subjects such as competition and world trade law.

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